Fulton County court document explains Dougherty restraining order refusal

ATLANTA — An order filed in Fulton County Superior Court on Monday outlines several reasons for the court’s denial of a temporary restraining order Dougherty County had requested to halt construction on Lee County Medical Center until a lawsuit filed on April 18 could be heard in court.

The document’s filing comes following a May 15 hearing in which the order was denied.

“Although the motion uses the term ‘temporary restraining order,’ Dougherty County’s counsel acknowledged at the hearing that the county is in fact seeking an interlocutory injunction,” the order said.

The order, signed by Judge Todd Markle, first states that the motion was barred by the state’s sovereign immunity, given that the action was filed against the Georgia Department of Community Health, DCH Commissioner Frank Berry in his official capacity and DCH Office of Health Planning Executive Director Rachel King in her official capacity.

The order signed by Markle explains that, under Georgia’s Constitution, sovereign immunity extends to the state and all of its departments and agencies, and that the state’s sovereign immunity can only be waived by the General Assembly.

“The county’s motion is barred because it seeks injunctive relief against a state agency and state officers sued in their official capacities,” the order said. “The Department of Community Health is a state agency.

“Moreover, the county has not demonstrated a waiver of the state’s sovereign immunity. The county’s motion for injunctive relief is therefore barred.”

The order also states that the motion is moot because the Lee hospital already has a certificate of need, which was granted on Nov. 15 and became final when the only recognized appellant to the CON — Crisp Regional Hospital — withdrew its appeal last month.

On that point, the order states Dougherty argued that the CON was not to become effective until May 21. A CON Appeal Panel decision not appealed to the department’s commissioner becomes final after 61 days — the window for which Dougherty argues began on March 21 when the appeal panel hearing officer denied the county’s appeal request.

“Where the thing sought to be enjoined has already happened, a request for injunctive relief is moot,” the order said. “Dougherty County seeks an injunction that would prevent the department from issuing a CON to Lee County MC. But Lee County MC already has a CON.

“The hearing officer never conducted a hearing and never issued findings or conclusions. Instead, as explained above, the appeal ended when Crisp Regional Hospital, the only appellant, voluntarily withdrew. Once Crisp withdrew its appeal, any possibility of a ‘decision’ by the CON Appeal Panel hearing was foreclosed, and Lee County MC’s CON was final and effective.”

The injunction was further denied, the order said, because Dougherty did not meet its burden to demonstrate that the four interlocutory-injunction factors weigh in favor of an injunction.

“An interlocutory injunction will not be granted unless the moving party shows that: (1) there is substantial threat that the moving party will suffer irreparable injury if the injunction is not granted; (2) the threatened injury to the moving party outweighs the threatened harm that the injunction may do to the party being enjoined; (3) there is substantial likelihood that the moving party will prevail on the merits; and (4) granting the interlocutory injunction will not disserve the public interest,” the order said. “No single factor is dispositive, so the moving party is not required to prove all four factors. Rather, the court balances the four factors.

“Dougherty County has not demonstrated that any of the four factors weighs in favor of granted the requested injunction.”

The order said the most important factor is substantial threat of irreparable injury. Dougherty’s claim stems from the theory that the Lee hospital will “cherry pick” the commercially insured patients, leaving other hospitals with the disproportionate burden of uninsured, underinsured and Medicaid — eventually leading to increases in property taxes to pay for certain services, services being eliminated or curtailed, and potential for health care costs for county residents to increase.

“The county’s alleged harms do not support the grant of an injunction because they are far-off and speculative,” the order said. “First, it will be years before Dougherty County’s alleged harms begin to materialize. Lee County MC has not been built yet. At the time the CON application was filed, it did not anticipate completing construction until 2020.

“Second, it is uncertain whether the alleged harms will ever materialize. The speculation in the county’s petition and the attached opposition statement are not sufficient for the court to find that Lee County MC will, in fact, harm Dougherty County or the existing health care delivery system, especially where the department (the agency charged with conducting the State’s health-planning activities) has already considered and rejected Dougherty County’s claims and concluded that Lee County MC will have a positive relationship with the existing health care system.”

Further, the order states that the harm the injunction would do to DCH outweighs the threat of injury to Dougherty, and it would disserve public interest — because it delays the opening of a hospital where need has been determined, and the DCH has an interest in seeing its decisions and rules enforced.

“Here, Dougherty County is essentially attempting to bring a CON appeal directly in Superior Court,” the order said. “The requested injunction would thwart the carefully constructed CON process. If the court grants an injunction in a case like this one — where the county’s purported harms are far-off and speculative and it is unlikely the county will succeed on the merits — it will open a new avenue for delay by parties who oppose CON applications. The department will be forced to defend its CON decisions on multiple fronts — both before the CON Appeal Panel and in Superior Court. These appeals will not only be burdensome for the department, but also for the courts, and for CON applicants, because appeals of the same application could ripen in multiple Superior Courts at the same time.

“Most importantly, injunctions like the one Dougherty County is requesting will delay implementation of new health services and facilities in cases where the General Assembly has specifically determined that such delay should not occur.”

The ruling adds that the lawsuit is unlikely to succeed on the merits. Specifically, it said, Dougherty lacks standing to challenge the county-financed exception because “a county cannot claim standing to challenge an administrative rule based on speculative economic interests that are contingent on hypothetical future events.”

It concludes that a writ of mandamus does not afford the relief Dougherty is seeking of delaying the CON because it has already been finalized, and that success is unlikely because of the applicable standard of review concerning the challenge of DCH rules.

“Such a challenge faces three significant hurdles,” the order said. “First, duly enacted rules are presumptively valid. Second, the court must defer to the department in matters involving the interpretation of statues and rules that the department is charged with enforcing. Third, such deference is particularly heightened when the interpretation of a department rule is at issue; in such cases, the department’s interpretation is the ‘ultimate criterion’ and is of ‘controlling weight,’ unless it is plainly erroneous or inconsistent with the rule.

“These presumptions make it unlikely that the county will ultimately succeed on the merits of its petition.”

Jennifer Parks